Federal Register of Legislation - Australian Government

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Administered by: Environment
Published Date 05 May 2016

Unique Identifying Number:






Administrative Appeals Tribunal








No: 2015/4287




Re: Friends of Shorebirds SE Incorporated



And: Minister for the Environment



And: Australian Kelp Products Pty Ltd

Other Party


And: Minister for Agriculture, Food and Fisheries (South Australia) Other Party





TRIBUNAL:                  Deputy President K Bean


DATE:                         24 March 2016


PLACE:                       Adelaide



In accordance with subsection 340(1) of the Administrative Appeals  Tribunal  Act 1975

(the Act):


1.      in  the  course  of  an  alternative  dispute  resolution  process,  the  parties  have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to the parties; and


2.      the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and


3.       seven days have passed after lodgement and none of the parties has notified the

Tribunal in writing that he or she wishes to withdraw from the agreement; and


4.      the Tribunal is satisfied that a decision consistent with those terms is within the powers of the Tribunal and is appropriate to make.





A.  On 3 June 2015, the Respondent made a declaration under section 303FN of the Environment Protection  and Biodiversity Conservation Act 1999 (the EPBC Act) that the harvesting of specimens under Miscellaneous Fishery Licence Y078 in the South Australian Beach-Cast  Marine Algae Fishery is an approved  wildlife trade operation;


B.  That  declaration  was   subject  to  a  number  of  conditions,  described   in  the declaration as 'Additional Provisions', which were imposed under section 303FT of the EPBC Act;


C.  On 20 August 2015, the Applicant sought review of the Respondent's decision; and


D.  On 3 March 2016,  the parties attended a conciliation conference,  at which the parties agreed to resolve the proceedings on the basis that the conditions imposed be changed;


THE TRIBUNAL, pursuant  to subsection 34D(2) of the Act, varies the declaration of

3 June 2015 so as to provide  that the declaration is subject to the following conditions, imposed under section 303FT of the EPBC Act:


1.  Relating to the harvesting of fish specimen that  are, or are derived from, fish or invertebrates, than specimens of species listed under Part 13 of the EPBC Act, taken in the South Australian Beach-Cast Seagrass and Marine Algae Fishery:


(a) Operation of the  South  Australian Beach-Cast Marine Algae  Fishery will be carried out in accordance with the South Australian Fisheries Management (Miscellaneous  Fishery) Regulations 2015 and the South Australian Fisheries Management (General) Regulations 2007 in force under the Fisheries Management Act 2007.


(b) The Department of Primary Industries and Regions South Australia (PIRSA) to inform the Department  of the Environment of any intended material changes to the       South   Australian    Beach-Cast   Marine   Algae   Fishery   management arrangements  that   may  affect  the  assessment  against  which  EPBC  Act decisions are made.


(c)  PIRSA to produce  and present reports to the Department of the Environment annually as per Appendix B of the Guidelines for the Ecologically Sustainable Management of Fisheries- 2nd Ed.


(d) PIRSA to take all reasonable steps to mitigate adverse impacts on migratory shorebirds   by   the   South   Australian   Beach-Cast   Marine   Algae   Fishery operations (harvesting and/or transporting of beach-cast wrack), including through:


(i)         implementing  a management strategy that ensures at least 50% of the licence  area  is  excluded  from  the  fishery  operations  at  all  times, including closing the area from the Beachport Conservation Park to approximately one kilometre north of Blowhole Road;


(ii)         avoiding the removal of all non-target species from the harvest area;


(iii)        imposing  additional  requirements  in the period  from  1 September  to

15 May (inclusive)  each year,  on sandy beaches  along Wrights  Bay, Nora Creina, Stinky Beach and the Rivoli Bay area from approximately one  kilometre  north  of  Blowhole  Road  to  the  southern  end  of  the Fishery, including only permitting harvesting to occur:


a.   by  way  of   hand  harvesting  (assisted  by  mechanical  winch  if required);


b.   on a maximum of 8 calendar days (or any part thereof) per calendar month, and a maximum of 4 calendar days (or any part thereof) between 1 May and 15 May, with each harvesting day to be advised to PIRSA prior to the commencement of harvesting; and


c.   through the use of up to two vehicles ( 4 wheel drive utility, or similar, with a trailer with a gross  vehicle mass of 3.5 tonne), with up to three people per vehicle, on any one day; and


(iv)       prohibiting  harvest  operations  within  100  metres  either  side  of  any nesting areas where Thinornis  rubricollis  (hooded plovers) are currently nesting and/or caring for dependent young, in all areas at all times.


(e) PIRSA, in collaboration with the South Australian Department of Environment, Water and Natural Resources, industry and where possible, the community to:


(i)         implement  a monitoring program  to annually assess the impact of the South Australian Beach-Cast Marine Algae Fishery on migratory shorebirds; and


(ii)        continue  to  support  research  with  the  aim  of  understanding  and effectively   managing  the  ecological   risk  posed  by  the  Fishery  to shorebirds and all relevant terrestrial and coastal ecosystems.


(f) Any data obtained from the monitoring program (excluding commercial in confidence data) must be included in the annual report sent to the Department of the Environment and should be available to the South Australian Department of Environment, Water and Natural Resources.